CJEU Case C-8/24 / Judgment

53. By its third question, the referring court asks, in essence, whether Article 19(1)(h) of Regulation 2018/1805, read in conjunction with Article 1(2) of that regulation and in the light of Article 47 of the Charter, must be interpreted as meaning that the executing authority of a Member State may refuse to recognise and execute a confiscation order on the basis of the alleged failure, in the issuing Member State, to observe the fundamental rights of a person affected by that order, within the meaning of point 10 of Article 2 of that regulation, on the grounds, first, that that person was not summoned to participate in all stages of the criminal proceedings which led to the adoption of that order, secondly, that he or she was not informed of his or her right of access to a lawyer throughout those proceedings and, thirdly, that he or she was not served, in a language which he or she understands, with the full text of the judgment imposing that order, even though that person did not make use of the legal remedies available to him or her in the issuing Member State in order to challenge that judgment

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61. Those grounds for refusal of recognition and execution include that laid down in Article 19(1)(h) of Regulation 2018/1805, in accordance with which the executing authority of a Member State may decide not to recognise or execute a confiscation order issued in another Member State only where, in exceptional situations, there are substantial grounds to believe, on the basis of specific and objective evidence, that the execution of that confiscation order would, in the particular circumstances of the case, entail a manifest breach of a relevant fundamental right as set out in the Charter, in particular the right to an effective remedy, the right to a fair trial or the right of defence.

62. It follows that the EU legislature provided, by Article 19(1)(h), for a specific ground for non-recognition and non-execution of a confiscation order, which is intended to ensure observance of the fundamental rights enshrined in the Charter and which gives concrete expression to Article 1(2) of that regulation, according to which that regulation does not have the effect of modifying the obligation to respect the fundamental rights and legal principles enshrined in Article 6 TEU.

63. In that regard, it is apparent from the very wording of Article 19(1)(h) of Regulation 2018/1805, also reproduced in recital 34 of that regulation, that that provision refers to the risk that the execution of a confiscation order entails ‘in the particular circumstances of the case’ a manifest breach of a relevant fundamental right enshrined in the Charter.

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65. In particular, Article 19(1)(h) of Regulation 2018/1805 does not require that such an individual examination be necessarily preceded by a finding, by the executing authority of the Member State concerned, that there are, in the issuing Member State, systemic or generalised deficiencies or deficiencies affecting more specifically an identifiable group of persons. That finding is, however, required by the Court in the context of the two-step examination which must, in principle, be carried out, in the context of Framework Decisions 2002/584 and 2008/909, in order to assess, during proceedings for the execution of a European arrest warrant and proceedings for the recognition and execution of a criminal conviction, whether there is a real risk of an infringement of the fundamental rights guaranteed in Articles 4, 7, 24 and 47 of the Charter (see, to that effect, inter alia, judgments of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 88 to 94; of 9 November 2023, Staatsanwaltschaft Aachen, C‑819/21, EU:C:2023:841, paragraphs 25 to 30; and of 29 July 2024, Alchaster, C‑202/24, EU:C:2024:649, paragraphs 52 to 54 and the case-law cited).

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68. In those circumstances, although, in the context of an individual assessment, the existence of either systemic or generalised deficiencies or deficiencies affecting more specifically an identifiable group of persons as regards compliance, in the issuing Member State, with the fundamental rights enshrined in the Charter could, where appropriate, be such as to contribute to establishing that there is a risk of a manifest breach of those rights, the fact remains that the executing authority of a Member State is not required to carry out the two-step examination, as referred to in paragraph 65 of the present judgment, in order to be able to invoke the specific ground for refusal of recognition and execution of a confiscation order, provided for in Article 19(1)(h) of Regulation 2018/1805.

69. That said, it should be noted, first, as the Advocate General observed in point 78 of his Opinion, that that provision, by confining the ground for refusal of recognition and execution which it sets out to, according to its express wording, ‘exceptional situations’ and by requiring proof of the existence of ‘substantial grounds’ to believe, on the basis of ‘specific and objective evidence’, that the execution of a confiscation order will lead to ‘a manifest breach’ of a relevant fundamental right as set out in the Charter, lays down strict conditions and a high threshold of seriousness for such an infringement.

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76. In any event, irrespective of the limits of the scope of the acts of secondary legislation referred to in paragraphs 72 and 75 of the present judgment, the safeguards provided for by the Charter must, as also stated in recital 18 of Regulation 2018/1805, apply to all proceedings covered by that regulation.

77. Thus, the obligation to comply with the Charter is binding on the Member States when they decide on an application for recognition and execution of a confiscation order in accordance with Regulation 2018/1805, given that such an order constitutes the implementation of EU law, within the meaning of Article 51(1) of the Charter.

78. Those fundamental rights include, inter alia, the right to an effective remedy and to a fair trial, laid down in Article 47 of the Charter, which comprises various elements; in particular, the rights of the defence, the principle of equality of arms, the right of access to a court and the right to be advised, defended and represented (judgment of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 32 and the case-law cited). The right to an effective remedy, the right to a fair trial and the right of defence are expressly referred to in Article 19(1)(h) of Regulation 2018/1805.

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80. It follows that, as the Advocate General observed, in essence, in point 93 of his Opinion, the person concerned by a confiscation order cannot, where he or she has not made use of the legal remedies available to him or her in the issuing Member State, be regarded as being in an exceptional situation characterised by the presence of specific and objective evidence such as to constitute substantial grounds to believe that the execution of that order would, in the particular circumstances of the case, entail a manifest breach of a fundamental right as set out in the Charter, within the meaning of Article 19(1)(h) of Regulation 2018/1805, unless he or she can demonstrate that particular circumstances made it impossible or, at the very least, excessively difficult for that person to exercise those remedies, or that those circumstances affected the effectiveness of those remedies.

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96. In the light of all of the foregoing, the answer to the third question is that Article 19(1)(h) of Regulation 2018/1805, read in conjunction with Article 1(2) of that regulation and in the light of Article 47 of the Charter, must be interpreted as meaning that the executing authority of a Member State cannot refuse to recognise and execute a confiscation order on the basis of an alleged failure in the issuing Member State to observe the fundamental rights of the person affected by that order, within the meaning of point 10 of Article 2 of that regulation, where that person, having been effectively served, in a language which he or she understands, with parts of the judgment imposing that order sufficient to enable him or her to appeal against it, did not make use of the legal remedies available to him or her in the issuing Member State to challenge that confiscation order.